On March 1, Register of Copyrights Marybeth Peters delivered a report to Congress based on a five-year study of the impact of the Visual Artists Rights Act of 1990 (VARA), which among other provisions allows the waiver of moral rights by certain types of artists. Moral rights recognize that a work reflects the personality of the artist and these rights are regarded as personal rather than economic rights.
The rights granted under VARA, which are similar to those granted to creators by many other nations, are the rights of attribution and integrity in a narrowly defined group of artworks. The creators of fine arts and exhibition photographs are granted the rights to claim or disclaim authorship in a work, as well as limited rights to prevent distortion, mutilation, or modification of a work after it is sold, for example. In addition, under some circumstances, these artists have the right to prevent destruction of a work that is made part of a building's structure.
In 1990, the provision of such rights under VARA was considered an innovation in copyright law. Concerned that commercial pressures might unduly influence artists to give away their new-found moral rights, Congress directed the Copyright Office to study an artist's ability to waive his or her moral rights in a specific, signed, written agreement among participating parties.
The Copyright Office sent a survey to 6,800 artists, artists' representatives, art students and art-related organizations, designed to elicit artists' awareness of these moral rights and the effects of the waiver provisions.
Although the Register concluded that no legislative action is currently warranted to modify VARA (section 106A of Title 17, United States Code), she did make several observations and one recommendation. She found that because federal moral rights legislation is in its infancy in this country, and because artists and art buyers are frequently unaware of moral rights, accurate predictions of the impact of VARA's waiver provisions are difficult to make at this time. This is exacerbated by the fact that federal courts have so far offered little guidance on the operation and application of VARA.
The report notes that the United States provides limited application of VARA rights for artists because many works are created in a work-for-hire situation. Such works are expressly exempted from VARA protection. In addition, many agreements are oral ones, which are also exempt from VARA protection. Finally, the more than 1,000 surveys returned reflected a low level of artist awareness about VARA, particularly by those artists earning less than $10,000 annually from the sale of their art and those not represented by an agent or gallery.
During the course of the study, the Copyright Office heard testimony from artists' representatives, commercial users, academics and artists themselves. The study included research into state laws that directly protect artists' rights and federal laws that indirectly protect artists' rights in their works. The office also studied statutes and case law regarding moral rights protecting artists and their works in foreign countries.
Suggestions for modification of VARA were clear on one point: participants in the study activities, as well as academics whose articles were reviewed by the Copyright Office during the course of the study, strongly indicated that VARA inappropriately permits one artist to waive the moral rights of the other artists in a joint work. The Register noted that Congress may wish to amend the statute to provide that no joint artist may waive another's statutory moral rights without the written consent of each joint artist whose rights would be affected.
The report, Waiver of Moral Rights in Visual Artworks - Final Report of the Register of Copyrights (Library of Congress, U.S. Copyright Office, March 1996), is available from the Government Printing Office for $22 by check, GPO Deposit Account, VISA or MasterCard from the Superintendent of Documents, PO Box 371954, Pittsburgh, PA 15250-7954; fax (202) 512-2250, telephone (202) 512-1800).
